Citation Nr: 0812029
Decision Date: 04/11/08 Archive Date: 04/23/08
DOCKET NO. 05-24 760 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUE
Whether there is clear and unmistakable error (CUE) in a
decision of November 1980 which denied service connection for
diabetes mellitus (DM).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Ernest Lee, Associate Counsel
INTRODUCTION
The veteran had active service from September 1960 to
September 1980.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of July 2003 by the
Department of Veterans Affairs (VA) Anchorage, Alaska
Regional Office (RO). The July 2003 decision determined that
there was no CUE in a prior rating decision from November
1980 which denied service connection for DM.
The Board notes that the February 2008 Informal Hearing
Presentation submitted by the veteran's representative seek
to reopen the claim for service connection for DM in addition
to a review of the claim for CUE. However, the only issue
which has been developed and certified for appellate review
is the claim for CUE. The request to reopen the claim for
service connection is hereby be referred to the RO for
review.
FINDINGS OF FACT
1. The veteran's claim for service connection for DM was
denied by the RO in November 1980.
2. The veteran did not file a notice of disagreement (NOD)
within one year of notification of the decision.
3. The decision of November 1980, which denied service
connection for DM, was based on the correct facts as they
were known at that time, and was in accordance with the
existing law and regulations.
CONCLUSION OF LAW
The November 1980 rating decision, which denied the veteran's
claim for service
connection for DM, did not contain clear and unmistakable
error. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§
3.105(a), 3.400(k), 20.1403 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that there was CUE in the November 1980
RO decision which denied service connection claim for DM. It
is alleged that the RO failed to adequately analyze the
treatment records from the veteran's time in service when
making a determination as to whether the veteran was
diagnosed with DM. The veteran asserts that he should have
been diagnosed with DM while in service based on the
prescribed course of treatment and findings from medical
examinations by the U.S. Air Force physician.
The Board notes that the veteran filed his service connection
claim for DM in October 1980, one month after retiring from
service in September 1980. In the decision of November 1980,
the RO concluded that the claim should be denied because DM
was not shown by the evidence of record. The veteran was
notified of the denial of his claim by letter in 1980.
The veteran did not file a timely appeal with respect to the
November 1980 RO decision when it was initially issued. The
RO did not subsequently communicate with the veteran
regarding its November 1980 decision until July 1995. The
July 1995 letter informed the veteran that the November 1980
decision will remain final unless new and material evidence
is submitted to the RO for the claim to be reopened for
readjudication. The veteran would later submit medical
treatment records from a U.S. Air Force medical facility from
January 1994 to September 1995. The RO issued a decision in
November 1995 which reaffirmed the November 1980 decision.
The RO did not find the treatment records to be new and
material. Under the applicable law and regulations, previous
determinations which are final and binding, including
decisions regarding service connection, will be accepted as
being correct in the absence of clear and unmistakable error.
See 38 C.F.R. § 3.105(a).
As a preliminary matter, while the Board is generally
required to address the Veterans Claims Assistance Act of
2000 (VCAA), the Board notes that it is not necessary to
discuss the VCAA in connection with the veteran's allegation
of CUE in this case. See 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R. § 3.159 (2007). The United States Court of
Appeals for Veterans Claims ("the Court") has held that the
provisions of the VCAA do not apply to a claim based on an
allegation of CUE in a previous decision. See Livesay v.
Principi, 15 Vet. App. 165 (2001) (en banc). The Court held
that an attempt to obtain benefits based on an allegation of
CUE "is fundamentally different from any other kind of action
in the VA adjudicative process." Livesay, 15 Vet. App. at
178. An allegation of CUE does not represent a "claim," but
rather is a collateral attack on a final decision. It
involves a legal challenge to a prior decision and does not
involve acquiring or submitting any additional evidence.
Therefore, the provisions of the VCAA are not for application
in the adjudication of the issue of CUE in a prior final RO
decision.
Clear and unmistakable error is a very specific and rare kind
of error. It is the kind of error, of fact or of law, that
when called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993); 38
C.F.R. § 20.1403(c). Generally, either the correct facts, as
they were known at the time, were not before the Board, or
the statutory and regulatory provisions extant at the time
were incorrectly applied. 38 C.F.R. § 20.1403(a). The
decision is to be based on the record and the law that
existed when the challenged decision was made. 38 C.F.R. §
20.1403(b).
A disagreement as to how facts were weighed or evaluated does
not constitute clear and unmistakable error. 38 C.F.R. §
20.1403(d). Clear and unmistakable error does not include
the otherwise correct application of a statute or regulation
where, subsequent to the Board decision challenged, there has
been a change in the interpretation of the statute or
regulation. 38 C.F.R. § 20.1403(e).
The regulatory definition of clear and unmistakable error was
based on prior rulings of the Court. More specifically, it
was observed in the notice of proposed rulemaking that
Congress intended that VA adopt the Court's interpretation of
the term "clear and unmistakable error." Indeed, as was
discussed in the notice of proposed rulemaking, 63 Fed. Reg.
27,534-36 (1998), the sponsor of the bill that became the law
specifically noted that the bill would "not alter the
standard for evaluation of claims of CUE." 143 Cong. Rec.
1,567-68 (Daily Ed. Apr. 16, 1997) (remarks of Rep. Evans,
sponsor of H.R. 1090, in connection with House passage).
Thus, the Board is permitted to seek guidance as to the
existence of clear and unmistakable error in prior Board
decisions based on years of prior Court precedent regarding
clear and unmistakable error, such as Fugo v. Brown, 6 Vet.
App. 40 (1993).
Clear and unmistakable error may be factual, or it may be
legal. On reviewing this allegation on its merits, the Board
finds that there is no evidence of clear and unmistakable
error based on the facts or the law. The evidence which was
of record at the time the veteran submitted his service
connection claim in October 1980 was his service medical
records.
The veteran was never diagnosed with DM while in service.
The service medical records contain two records for Dental
Patient History from September 1978 and November 1979. The
veteran responded "No" when asked if he was ever treated
for diabetes. The Board notes that the November 1979
Retirement Examination noted elevated fasting blood sugar
levels, but also shows urinalysis was negative for sugar.
The November 1979 Report of Medical History contained a
disclosure whereby the veteran denied the presence of sugar
in his urine.
The Board does acknowledge that the veteran's subsequent
service medical records contain a treatment record from
December 1979 which stated the following: "mild
hyperglycemia - possible mild AODM (adult-onset diabetes
mellitus) or lipid disorder [eligible] secondary obesity"
and "obesity." The Board notes that the examining
physician from December 1979 stated only that there was a
"possibility" of DM. No conclusive diagnosis was made by
the examining U.S. Air Force physician. Indeed, the Board
notes that the use of "possibility" in suggesting that the
veteran may have suffered from diabetes at the time he was in
service makes this is a speculative opinion and is not
sufficient medical evidence to establish entitlement to
service connection. Tirpak v. Derwinski, 2 Vet. App. 609
(1992). The Board notes that the same U.S. Air Force
physician recorded statements in January 1980 which were even
less supportive of the claim. The physician noted only
"mild hyperglycemia, obesity" and also stated "good
results with diet so far."
Furthermore, the Board does take note that the RO
acknowledged in its November 1980 decision that the veteran
had a high fasting blood sugar as disclosed on his retirement
exam but also noted that the veteran did not have polyuria,
polyphagia, polydipsia or blurred vision. The RO also
acknowledged that the veteran did have mild hyperglycemia but
DM was not diagnosed.
The Board notes that there was no evidence at the time of the
November 1980 decision that the veteran was diagnosed with DM
one year after leaving the service. The Board finds that the
decision of November 1980, which denied service connection
for DM, was based on the correct facts as they were known at
that time. The rating decision shows that the RO considered
all of the evidence which was of record at that time, namely
the service medical records. The service medical records
showed the veteran had the symptoms that are commonly
associated with DM, but no conclusive diagnosis was made
while in service. Although the veteran disagrees with the
conclusions reached by the RO, an asserted failure to
evaluate and interpret the evidence correctly is not clear
and unmistakable error. See generally, Eddy v. Brown, 9 Vet.
App. 52 (1996).
The veteran's representative has argued that there were
indicators in the service medical records that the veteran
may have had DM, and this should have triggered a VA
examination. However, the absence of a VA examination would
not be clear and unmistakable error. See Allin v. Brown, 6
Vet. App. 207, 214 (1994).
The Board finds that the decision by the RO was in accordance
with the applicable law and regulations. A service-
connection claim must be accompanied by evidence which
establishes that the claimant currently has the claimed
disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).
The Board acknowledges that evidence of record contains
numerous treatment records documenting the veteran's post-
service DM treatment. A post-service medical record from
October 1980 at a U.S. Air Force medical facility stated
"mild AODM." However, these documents will not be factored
into the Board's review of the CUE claim because the
documents were not of record at the time the November 1980
claim was decided.
The Board concludes the November 1980 decision was not
clearly and unmistakably erroneous in failing to award
service connection for DM. There was no error of fact or law
that if evaluated by the Board would result in a manifestly
different conclusion to which reasonable minds could not
differ. In reaching this conclusion, the Board observes that
the evidence of record at the time of the November 1980
decision was correctly reported. Also, the pertinent
statutory and regulatory provisions extant at the time of the
November 1980 decision were correctly applied. Mere
disagreement with the weighing of service medical records
extant in 1980 does not amount to CUE. See Russell v.
Derwinski, 3 Vet. App. 310 (1992) (en banc)). As such, the
Board concludes that the November 1980 rating decision, which
denied the veteran's claim for service connection for DM, did
not contain clear and unmistakable error.
ORDER
Revision of the rating decision of November 1980 which denied
service connection for DM, on the basis of clear and
unmistakable error, is denied.
____________________________________________
JONATHAN B. KRAMER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs